British Waterways Board v Paul Davies - Judgement

31 March 2011

British Waterways announced today (31/3/11) that it welcomed the Judgment made in Bristol County Court in which His Honour Deputy Judge O’Malley said he favoured BW’s interpretation of Section 17 of the British Waterways Act 1995 (relating to Continuous Cruising). In doing so, the Learned Judge found that the Defendant, Mr Davies (who lives on his boat), had not complied with the requirements of the 1995 Act and that British Waterways was justified in bringing the legal proceedings against him.

Mr Davies has kept his boat on the Kennet & Avon Canal in the Bradford upon Avon area and declined to respond to BW’s repeated warnings that his boat movement was not sufficient to meet the licensing requirements. These state that to qualify for a BW boat licence, a boat must have a home mooring – somewhere where it may lawfully be kept when not being used for cruising. An exception is made for boats which ‘bona fide’ navigate throughout the period of the licence. Because Mr Davies did not move sufficiently or agree to comply with its other terms and conditions, BW refused his application to license his boat. And, because the boat is Mr Davies’ home, BW followed its usual procedure of asking the Court to decide on this case.

There was little or no dispute as to the extent of Mr Davies’ boat movements. Central to the issue considered by the court was the meaning of the term ‘bona fide navigation’.

The Judge noted that Mr Davies’ purpose in keeping the boat on the short stretch of canal between Bath and Bradford upon Avon was so that his home was within convenient distance of his place of work and his social circle, and that his purpose in moving the boat was to attempt to escape the requirement to have a permanent mooring. The Judge said: “What is clear to me is that the defendant who is clearly living on the boat cannot successfully claim that he is using it ‘bona fide for navigation’ by moving it every so often up and down a short stretch of canal.”

This is the first time the legal requirements for continuous cruising have been tested before the Courts and the Judgment included helpful comments which has enabled BW to refine its Mooring Guidance.

The Judge’s decision is that Mr Davies now has three months (30 June 2011) to remove his boat from British Waterways’ canals and rivers. The Judge concluded by saying: “BW behaved in an exemplary fashion throughout.”

Sally Ash, Head of Boating at British Waterways, comments: “Today’s decision is a great help in bringing greater clarity to a subject which has caused much debate and difficulty within the waterways community. We very much welcome continuous cruising on our canals and rivers and are, as a result of the Learned Judge’s findings, refining our Mooring Guidance. The refined Guidance which is based on professional legal advice, including from Leading Counsel, will be published on our website and we will shortly be inviting representatives of national boating user groups to discuss these.”

6 comments to British Waterways Board v Paul Davies – Judgement

  • Nick Brown

    The judgement provided clarity as to the meaning of bona fide navigation (section 17.3.c.ii of the 1995 BW Act) leading to BW’s commitment to redraft the Mooring Guidance for Continuous Cruisers. In particular the Court ruling questions BW’s requirement that Pleasure Boats make a progressive journey and denies the need to travel around a significant part of the canal network. Furthermore, any boat or boater subjected to a Section 8 by BW (that orders a boat to cruise away and off BW managed waters) must be given the opportunity to defend the claim in a Court of Law. This County Court judgement only refers to Mr Davies and does not create a formal legal precedent.

    • Will Chapman

      Thanks for that clarification Nick, it leaves open a lot more questions than I took from BW’s press release.

      Looking (without any legal training) at section 17.3.c:

      (ii) the applicant for the relevant consent satisfies the Board that the vessel to which the application relates will be used bona fide for navigation throughout the period for which the consent is valid without remaining continuously in any one place for more than 14 days or such longer period as is reasonable in the circumstances.

      .. that is clearly a key clause as far as ‘continuous cruising’ is concerned. However, I would guess that not many cc’ers would want to go to the effort & expense to test it. How did the court reconcile questioning that ruling with what I presume was an order to Mr Davies to move?

      Regards

      Will

  • Maffi

    Excuse me but does that or does it not say move your boat every 14 days.

  • Paul

    Intention was the main focus. The judgment ruled his intention was to keep his boat close to his place of work and social circle – all decisive for housing law. Therefore his main intention was to maintain his home and home life and navigation was a secondary consideration and therefore not bona fide. As Houseboats may navigate, pleasure boats have to bona fide navigate. That’s the difference. Appealable.

  • Pam

    A Pleasure Boat may remain in one place 14 days or longer (as reasonable)

  • National Bargee Travellers Association – News Release
    3rd April 2011

    British Waterways v Davies: BW to Revise Continuous Cruising Guidelines

    But live-aboard boaters’ homes now at risk from court judgement

    The judgement in British Waterways v Paul Davies handed down on 31st March 2011 in Bristol County Court could have serious consequences for all continuously cruising live-aboard boaters. However, the outcome also means that British Waterways (BW) is to redraft the Mooring Guidance for Continuous Cruisers. In particular BW is likely to drop the requirement to make a progressive journey and to travel around a significant part of the canal network.

    The judgement was sealed in the County Court and therefore only refers to Mr Davies. It does not create a formal legal precedent, but it is clear that BW will try to rely on it in future cases.

    The judgement ruled that Mr Davies, who works, socialises and navigates in the 10 mile stretch between Bath and Bradford on Avon, was not using his boat bona fide for navigation. This aspect of the judgement did not consider the right to respect for his home, family and private life conferred by Article 8 of the European Convention on Human Rights. As a consequence of this judgement, many live-aboard boaters may be rendered homeless by BW.

    The judgement on the meaning of ‘bona fide for navigation’ appears to suggest that a live-aboard boater without a home mooring must genuinely intend to navigate the canal system and not move simply to comply with the law.

    Nick Brown, the Legal Officer of the National Bargee Travellers Association (NBTA), said “This really does pave the way for social cleansing. The judgement defined ‘bona fide for navigation’ as the intention to navigate in good faith. According to this logic, if you drove at 30 miles per hour in a 30 MPH zone you would be prosecuted for speeding if you were simply observing the speed limit in order to comply with the law, rather than because you believed that 30 MPH was the appropriate speed to drive at. This would make BW the ‘Thought Police’ “.

    On the positive side, any live-aboards subjected to Section 8 action by BW must be given the opportunity to defend themselves in court.

    What BW is glossing over is that although the court found that Mr Davies was not using his boat bona fide for navigation, the judgement envisaged a use of the boat that falls short of the Mooring Guidance for Continuous Cruisers but would still comply with the legislation. In consequence, BW has now accepted that it does not have the power to enforce the continuous cruising guidelines in their present form.

    The NBTA is taking legal advice.

    — ENDS —

    NOTES FOR EDITORS
    About The National Bargee Travellers Association

    Established in 2009, The National Bargee Travellers Association represents and advises Bargee Travellers (itinerants who live on boats) in particular in relation to their housing needs and in defence of their rights under the European Convention on Human Rights. It is a networking organisation that helps vulnerable boat dwelling communities protect themselves.

    The NBTA also liaises with the settled community and works with public sector bodies such as British Waterways and the Environment Agency in formulating policy and legislation.

    For more information contact:
    WWW http://www.bargee-traveller.org.uk
    E-mail:press@bargee-traveller.org.uk
    Tel:+44 (0) 7867 75 70 95
    Fax:+44 (0) 870 288 9520

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